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HARASSMENT IN THE WORKPLACE IN SWITZERLAND PROTECTION AND STRATEGIES Christine Pitteloud – Direction du Travail [labour division]

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SWITZERLAND – AN OVERVIEW LABOUR LAW PSYCHOLOGICAL HARASSMENT CONFEDERATION STRATEGY NEUCHÂTEL CANTON STRATEGY VAUD CANTON STRATEGY CONCLUSIONS

I. SWITZERLAND-AN OVERVIEW: 

I. SWITZERLAND-AN OVERVIEW

I. SWITZERLAND-AN OVERVIEW : 

I. SWITZERLAND-AN OVERVIEW Federal government, divided into 26 cantons Population of 7.4 million Labour force: 4 368 person-months - 2 416 men and 1 951 women 11% of men and 57% of women work part-time 88% of businesses are micro- businesses (fewer than 10 employees)

II. LABOUR LAW: 

II. LABOUR LAW Swiss legal system Federal and cantonal jurisdictions Primacy of written law Regulations drafted in a generic sense, meant to cover all established facts Judge interprets the law, with certain exceptions, and does not have a law-making role

II. LABOUR LAW: 

II. LABOUR LAW Legal foundation Labour Act (LTr) Ordinance 1 to 4 relating to the Labour Act (OLT 1 to 4) Labour Code (CO) Gender equality legislation (LEg)

II. LABOUR LAWLABOUR ACT: 

II. LABOUR LAW LABOUR ACT Labour Act Minimal standards for health protection Applicable to all businesses and workers, with some exceptions Public law: variances impossible, even with workers’ consent

II. LABOUR LAWLABOUR ACT : 

II. LABOUR LAW LABOUR ACT Health protection covers: Safe use of materials Protection of personal integrity (physical and psychological) Protection from burn-out

II. LABOUR LAWLABOUR ACT : 

II. LABOUR LAW LABOUR ACT Monitoring compliance with the Labour Act: Cantonal workplace inspections Automatic or triggered by a complaint  The worker does not have to deal directly with the employer

II. LABOUR LAWLABOUR ACT : 

II. LABOUR LAW LABOUR ACT Prerogatives of workplace inspections authority: Full access to business premises Investigation and information Right to take samples Right to consult certain logbooks/records Right to question workers without the employer being present

II. LABOUR LAWLABOUR ACT : 

II. LABOUR LAW LABOUR ACT Role of workplace inspections authority: Advice Information Control Impose measures on the business (administrative procedure)

II. LABOUR LAWLABOUR ACT : 

II. LABOUR LAW LABOUR ACT

II. LABOUR LAWLABOUR ACT : 

II. LABOUR LAW LABOUR ACT Limitations of workplace inspections? The Labour Act protects the health of workers in a company ⇛ Workplace inspection activities are confined to the business ⇛ No action is taken in the case of former employees

II. LABOUR LAWLABOUR ACT : 

II. LABOUR LAW LABOUR ACT Employers who violate health protection legislation are liable to imprisonment for up to six months or a fine. Penal authorities have the power to impose these sanctions.

II. LABOUR LAWLABOUR ACT : 

II. LABOUR LAW LABOUR ACT Anyone can report a violation of the Labour Act to the workplace inspection authority Anyone can report a violation of the Labour Act to penal authorities !

II. LABOUR LAWLABOUR CODE : 

II. LABOUR LAW LABOUR CODE Labour Code Framework regulations under private law between the employer and the worker Pertains to specific aspects of employment contracts (activity, compensation, leave, termination of contract) Importance of social partnerships in Switzerland

III. LABOUR LAWLABOUR CODE : 

III. LABOUR LAW LABOUR CODE Mutual obligations The employer shall protect the worker’s person The worker has duty of care and loyalty to the employer

II. LABOUR LAWLABOUR CODE : 

II. LABOUR LAW LABOUR CODE Care: Performance of work with the proper care Worker’s responsibility

II. LABOUR LAWLABOUR CODE : 

II. LABOUR LAW LABOUR CODE Loyalty: Safeguard the legitimate interests of the employer Income-earning activity for a third party with the employer’s consent Duty of discretion Protection of professional privilege

II. LABOUR LAWLABOUR CODE : 

II. LABOUR LAW LABOUR CODE Unfair dismissal if done: For reasons directly related to the worker’s personality Because the worker has exercised a constitutional right To prevent the worker from exercising his/her contractual rights Because of a worker’s membership in a union

II. LABOUR LAWLABOUR CODE : 

II. LABOUR LAW LABOUR CODE In the event of non-compliance with the Labour Code, the worker or the employer may: Demand that the violation be prevented or that it cease Demand compensation for damages Demand compensation for psychological harm Terminate the employment contract

II. LABOUR LAWLABOUR CODE: 

II. LABOUR LAW LABOUR CODE Judicial authorities (courts) have the power to rule in matters pertaining to employment contracts. The worker is responsible for taking the matter to court (civil proceeding).

II. LABOUR LAWPUBLIC OFFICIALS: 

II. LABOUR LAW PUBLIC OFFICIALS Government employees (Confederation, cantons): Subject to specific legal provisions Principles described below Specific obligations Specific legal procedures

II. LABOUR LAWLEGAL PROCEDURES: 

II. LABOUR LAW LEGAL PROCEDURES WORKER X (EMPLOYED IN COMPANY Y) MOBBING VICTIM WORKPLACE INSPECTIONS CIVIL AUTHORITIES (LABOUR RELATIONS BOARD) PENAL AUTHORITY Administrative procedure Administrative constraint measures Prevention/ cessation of violation Claims relating to unfair dismissal Action for damages Action for psychological harm Sanction for violation of health legislation Where applicable, other sanctions (verbal abuse, for example)

II. LABOUR LAWLEGAL PROCEDURES : 

II. LABOUR LAW LEGAL PROCEDURES FORMER EMPLOYEE X (NO LONGER EMPLOYED BY COMPANY Y) MOBBING VICTIM LABOUR LAW ENFORCEMENT CIVIL AUTHORITIES (LABOUR RELATIONS BOARD) PENAL AUTHORITIES Administrative procedure Administrative constraint measures NO RECOURSE FOR EX-EMPLOYEES Prevention, cessation, or reporting of violation Claims relating to unfair dismissal Action for damages Action for psychological harm Sanction for violation of health legislation Where applicable, other sanctions (verbal abuse, for example)

III. PSYCHOLOGICAL HARASSMENT: 

III. PSYCHOLOGICAL HARASSMENT Abuse in the workplace in Europe: 4% of workers have suffered physical abuse 2% have been sexually harassed 9% have been intimidated and bullied

III. PSYCHOLOGICAL HARASSMENT : 

III. PSYCHOLOGICAL HARASSMENT

III. PSYCHOLOGICAL HARASSMENT : 

III. PSYCHOLOGICAL HARASSMENT Difference between Switzerland and other countries: Possible explanations Methodology used in studies Cultural sensibilities The “perfect student” syndrome?

III. PSYCHOLOGICAL HARASSMENT : 

III. PSYCHOLOGICAL HARASSMENT Definition by the courts: A series of hostile comments or behaviours directed in a systematic way at one individual by one or a few individuals, over a fairly long period of time

III. PSYCHOLOGICAL HARASSMENT: 

III. PSYCHOLOGICAL HARASSMENT Leymann: 45 behaviours classified according to impact on: Victim’s ability to express himself/herself Interpersonal relations Perception of colleagues Quality of professional and private life Health

III. PSYCHOLOGICAL HARASSMENT : 

III. PSYCHOLOGICAL HARASSMENT Some considerations: Cost of stress in Switzerland: CHF 4.2 billion, or 1.2% of GDP CHF 2.4 billion owing to absenteeism and production losses  Workplace inspections authority must intervene in all types of psycho-social issues

III. PSYCHOLOGICAL HARASSMENT : 

III. PSYCHOLOGICAL HARASSMENT Workplace inspection interventions by type of behaviour: Corporate Social isolation Acts against physical integrity Acts aimed at psychological integrity and personality

III. PSYCHOLOGICAL HARASSMENT : 

III. PSYCHOLOGICAL HARASSMENT Guidelines for intervention by workplace inspections authority: Emphasize prevention (advice, information) Remain neutral: de-personalize the conflict Support the company in analysing problems and finding solutions

III. PSYCHOLOGICAL HARASSMENT : 

III. PSYCHOLOGICAL HARASSMENT Action required by companies: Zero tolerance policy Employee information Implementation of preventative structures - resource person - case and complaint handling procedure - sanctions for perpetrators Referral to specialists (mediator, psychologist)

III. PSYCHOLOGICAL HARASSMENT : 

III. PSYCHOLOGICAL HARASSMENT Limitations of the system: Workplace inspections come late in the piece The challenge of exposing this phenomenon Difficulty imposing corporate measures Perverse behaviour Trauma to victims

IV. FEDERAL STRATEGY: 

IV. FEDERAL STRATEGY 37 932 employees, of which 28.7% are women Employee fluctuation rate: 5.8% Average age: 43 71.7% German-speaking employees 19.6% French-speaking employees 6.4% Italian-speaking employees

IV. FEDERAL STRATEGY: 

IV. FEDERAL STRATEGY Implement a code of behaviour Systematically inform management about mobbing prevention Implement a social consultation service Establish a mediation service

IV. FEDERAL STRATEGY : 

IV. FEDERAL STRATEGY Mediation service: Help with problems at work Neutral, free of charge and confidential No decision-making power but access to all services Consultation of other parties

IV. FEDERAL STRATEGY: 

IV. FEDERAL STRATEGY Of 100 cases handled in 2004: 57% related to difficulties with superiors 7% pertained to mobbing situations 16% involved problems with workstations

IV. FEDERAL STRATEGY : 

IV. FEDERAL STRATEGY Cases handled in 2004: Only 7% were dissatisfied with the solution 76% were resolved through dialogue 24% involved help from other parties

V. NEUCHÂTEL CANTON STRATEGY: 

V. NEUCHÂTEL CANTON STRATEGY Government policy (ACT) against any form of harassment Creation of confidential groups of employees that are representative of staff Information for all workers

V. NEUCHÂTEL CANTON STRATEGY : 

V. NEUCHÂTEL CANTON STRATEGY Confidential groups: Complainant meets with two neutral individuals The problem is identified and, with the complainant’s consent, contact is made with other services Efforts are made at conciliation Recourse to external specialists if necessary If this approach fails, the complaint is documented for the attention of the department head

V. NEUCHÂTEL CANTON STRATEGY : 

V. NEUCHÂTEL CANTON STRATEGY Solutions: Short-term “therapeutic” relocation to prevent isolation of the victim Internal transfers In serious cases, perpetrator’s dismissal

VI. VAUD CANTON STRATEGY: 

VI. VAUD CANTON STRATEGY Government policy (ACT) against any form of harassment Will to take action against any major relational difficulties Creation of a specialized group, empowered to listen, mediate and investigate

VI. VAUD CANTON STRATEGY : 

VI. VAUD CANTON STRATEGY Mediation Completely confidential Formulation of the conflict Will of the parties  Can lead to a memorandum of agreement

VI. VAUD CANTON STRATEGY : 

VI. VAUD CANTON STRATEGY Investigation Triggered by the hiring authority or the complainant or automatically Parties convened to a hearing, witnesses give evidence, access to employer exhibits and information Report with conclusions accessible to authorities concerned, with decision required by the employer Potential for recourse against employer’s decision

VI. VAUD CANTON STRATEGY : 

VI. VAUD CANTON STRATEGY Annual figures: Approximately 80 cases a year Up to 25 mediations Fewer than 10 reports per year About half the reports find there has been harassment HOWEVER All reporting reveals serious dysfunction

VII. CONCLUSIONS: 

VII. CONCLUSIONS Go to work knowing that: Relationships exist within a hierarchy Decisions are not debatable We do not choose our colleagues But we spend a great deal of time with them We should not tell them everything BUT COMMUNICATION IS ESSENTIAL

VII. CONCLUSIONS: 

VII. CONCLUSIONS [Translation] “A good working climate [is not an end in itself]. In the West, we are always too nice to each other. Only the result matters […] ” Bob Lutz, Swiss President of General Motors, BILAN, March 2005

REFERENCES: 

REFERENCES www.seco.admin.ch  Labour  Labour and health (information on stress, burn-out, mobbing) www.personal.admin.ch/f: Office fédéral du personnel [federal personnel office] www.impact.vd.ch: confidential employees group in Vaud canton www.admin.ch  Compilation of federal statutes